2.1 License to User. Subject to the terms and conditions contained herein, Ethos grants User and User accepts, a non-exclusive, non-transferable license (without the right to sublicense) to use the Workbench solely in the United States of America, for the sole purpose of assisting Ethos with underwriting life insurance policies at the specific request of Ethos (the “Purpose”).User is not granted any rights to distribute or otherwise disclose the Workbench, any portion or component of the Workbench, or any information regarding the Workbench under these Terms.
2.2.License to Ethos. Subject to the terms and conditions contained herein, User grants Ethos and Ethos accepts, a non-exclusive, fully paid, royalty-free, perpetual, irrevocable, worldwide, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display (in whole or in part) any data, information, or content User enters into the Workbench.
Ethos shall provide User with access to the Workbench on or after the Effective Date.The Workbench and any related data, intellectual property, trade secrets, customer information, or documentation contained therein or related thereto shall be Confidential Information of Ethos, which shall be used only for the Purpose, and shall be restricted to use solely by the User.
User shall perform or provide the following:
4.1 Use of the Workbench. User shall use the Workbench during the term of this Agreement solely for the Purpose and in compliance at all times with all applicable laws, statutes, and regulations, including, without limitation, any applicable state insurance laws and regulations related to life insurance underwriting.
4.2 Feedback. User will provide reasonable feedback regarding the Workbench to Ethos and will respond to reasonable questions from Ethos regarding the functionality, issues, problems, and potential improvements to the workbench, and will answer any follow-up questions Ethos may have (collectively, and separately, “Feedback”).
5.1 Workbench. Ethos shall retain all right, title, and interest in and to the Workbench and all Intellectual Property therein, and User shall not take any action inconsistent with such title and ownership.User shall not have any ownership interest in any element, segment or component of the Workbench.As used in these Terms, “Intellectual Property” includes all patent, copyright, trademark, trade secret and other industrial and intellectual property rights. User shall not alter or remove any printed or on-screen copyright, trade secret, trademark, proprietary or other legal notices contained on or in the Workbench.
5.2 Restrictions. User shall not, and shall not cause or permit, modification, adaptation, copying, making derivative works of or reverse engineering, disassembling or decompiling of the Workbench or any component(s) thereof.Further: (a) User shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Workbench or any Confidential Information; (b) User shall not frame or utilize framing techniques to enclose any trademark, logo, or other Confidential Information (including images, text, page layout or form) of Ethos; (c) User shall not use any metatags or other “hidden text” using Ethos’s name or trademarks; (d) User shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Workbench; and (e) except as expressly stated herein, no part of the Confidential Information may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other additions to the Workbench and/or the Confidential Information shall be subject to the Agreement.Ethos reserves all rights not specifically granted in the Agreement.Any unauthorized use of the Workbench or any Confidential Information terminates the licenses granted by Ethos pursuant to the Agreement.
5.3 Improvements. Ethos shall be the sole owner of all right, title, and interest in and to all improvements to the Workbench, including, without limitation, any improvement made as a result of any Feedback.User hereby assigns all of its right, title and interest in and to any Intellectual Property in any Feedback that User provides to Ethos.User shall execute such other documentation to evidence or perfect Ethos’s ownership interests in and to any such Feedback as may be requested by Ethos from time to time.
This agreement shall commence on the Effective Date and shall expire upon termination of User’s access to the Workbench or upon notice from Ethos at any time for any reason or no reason (the “Term”). Upon expiration or termination of this Agreement, User shall have no further right to use of or access to the Workbench.
The provisions of Sections 5 (Ownership of Workbench), 8 (Confidentiality), 9 (Disclaimer of Warranty), 10 (Limitations of Liability), 11 (General Provisions), and this Section 7 shall survive any termination or expiration of this Agreement according to their terms.
8.1 Confidential Information. User agrees that in order to further the performance of this Agreement, Ethos may disclose to User certain confidential information which may be identified as such in writing or may reasonably be considered confidential, including, without limitation, any Ethos Intellectual Property, concepts, designs, software code, processes, algorithms, methods, accounting and financial information, as well as any and all customer data, including any personal information and personal health information (collectively, “Confidential Information”).All Feedback shall also constitute Confidential Information.
8.2 Protection of Confidential Information. User agrees to protect the confidentiality of Confidential Information with at least the same degree of care that it utilizes with respect to its own personal information, but in no event less than reasonable and customary care for such materials, including, without limitation, agreeing not to use any Confidential Information for any purpose other than as explicitly set forth herein in furtherance of the Purpose.
8.3 Injunctive Relief. Because the unauthorized use, transfer or dissemination of any Confidential Information may substantially diminish the value of such information and may irreparably harm Ethos and/or its customers, if User breaches any provision of this Section 8, Ethos shall, without limiting its other rights or remedies, be entitled to equitable relief, including, without limitation, injunctive relief, without the necessity of posting a bond therefor.
THE WORKBENCH IS BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ETHOS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR WRITTEN, WITH RESPECT TO THE WORKBENCH, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, INFORMATIONAL CONTENT, INTERFERENCE WITH ENJOYMENT OR THAT THE WORKBENCH IS ERROR-FREE OR FREE FROM DEFECTS.
10.1 ETHOS’S LIABILITY FOR DAMAGES TO USER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).IN NO EVENT SHALL ETHOS BE LIABLE TO USER FOR ANY LOSS OF DATA, PROFITS OR USE OF THE WORKBENCH, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE WORKBENCH. THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.2 USER SHALL INDEMNIFY, DEFEND, AND HOLD ETHOS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, COSTS, FEES, FINES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL REASONABLE ATTORNEYS’ FEES AND COURT COSTS) RESULTING FROM OR ARISING OUT OF ANY CLAIMS, SUITS, ACTIONS, OR PROCEEDINGS (REGARDLESS OF WHETHER BROUGHT BY ANY PRIVATE THIRD PARTY, GOVERNMENTAL AGENCY, ETHOS CUSTOMER(S), OR OTHERWISE) BASED ON ANY ALLEGATION (A) THAT USER BREACHED ANY REPRESENTATION, WARRANTY, OBLIGATION, OR COVENANT CONTAINED HEREIN, AND/OR (B) THAT USER VIOLATED ANY APPLICABLE LAW, STATUTE, REGULATION, OR RULE. ETHOS RESERVES THE RIGHT TO ASSUME THE CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY USER, IN WHICH EVENT USER WILL FULLY COOPERATE WITH ETHOS IN ASSERTING ANY AVAILABLE DEFENSES.USER AGREES THAT THE PROVISIONS IN THIS SECTION WILL SURVIVE ANY TERMINATION OF USER’S ACCOUNT, THE AGREEMENT, AND/OR USER’S ACCESS TO THE WORKBENCH.
11.1 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
11.2 No Agency; Independent Contractors; Third Party Beneficiaries. Nothing contained in this Agreement shall be deemed to imply or constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose.Except for the parties, this Agreement is not intended to create any right or cause of action in or on behalf of any other person or entity.
11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law provisions which would lead to the application of any other law. Any dispute or proceeding arising under or relating to this Agreement shall be brought exclusively in the federal or state courts located in San Francisco County, California.
11.4 Entire Agreement; Amendment. The Terms constitutes the entire agreement between the parties with regard to the subject matter hereof.The parties understand and agree that Ethos may update the Terms from time-to-time.
11.5 Severability. Whenever possible, each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement.
11.6 Construction. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.As used in this Agreement, the singular shall include the plural and vice versa, and the terms “include” and “including” shall be deemed to be immediately followed by the phrase “without limitation.”The captions and headings in this Agreement are inserted for convenience and reference only and in no way define or limit the scope or content of this Agreement and shall not affect the interpretation of its provisions
11.7 Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by User.
11.8 Electronic Signatures.
(a) User understands and agrees that its intentional action in providing an electronic signature, constituted by clicking a button (e.g., an “Accept” button) indicating an electronic signature, typing User's name in a signature field, accepting by performance by continuing to use or access the Workbench, or otherwise entering an electronic signature, is valid evidence of consent to be legally bound by this Agreement and governing User's relationship with Ethos for use of the Workbench.
(b) User is responsible for reviewing and understanding all of the Terms.User accepts as reasonable and proper notice, for the purpose of any and all laws, rules, and regulations, notice by electronic means, including, the posting of modifications to this Agreement on Ethos’s website or within the Workbench.
(c) The electronically stored copy of this Agreement is considered to be the true, complete, valid, authentic, and enforceable record of the Agreement, admissible in judicial or administrative proceedings to the same extent as if the document and records were originally generated and maintained in printed form.User agrees not to contest the admissibility or enforceability of Ethos's electronically stored copy of the Agreement in any proceeding arising out of the terms and conditions of the Agreement.